Council for the Regulation of Healthcare Professionals, R (on the application of) v The General Medical Council & Anor [2004] EWHC 3115 (Admin)

Case No CO/3276/2004[2004] EWHC 3115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 20th December 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF THE COUNCIL FOR THE REGULATION OF HEALTHCARE PROFESSIONALSAppellant-v-
Between
THE GENERAL MEDICAL COUNCILRespondentDR FEDA MULHEMRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J HOWELL QC AND MR B JAFFEY (instructed by Weightmans) appeared for APPELLANTMR R HENDERSON QC AND MS J STRATFORD (instructed by FIELD FISHER WATERHOUSE) appeared for FIRST RESPONDENT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal by the Council for the Regulation of Healthcare Professionals against a decision of the General Medical Council whereby it suspended the doctor concerned, a Dr Feda Mulhem.[2]I can deal with the background relatively briefly because this is a case where the GMC is not challenging that the decision of its Committee was one which cannot be upheld. I need not go into the statutory basis upon which the Council for the Regulation of Healthcare Professionals can refer cases to this court, which are dealt with as if they are appeals. Suffice it to say that, if a disciplinary penalty imposed by the Committee is said to have been unduly lenient, that is a matter which can be brought before this court. The assertion here is that the penalty of suspension was indeed unduly lenient and that the only proper penalty would have been to erase the doctor from the Register.[3]Dr Mulhem was trained and qualified in Syria in 1991. He worked in this country between 1998 and 2002, initially as a Senior House Officer and later as a Registrar at the Queen's Medical Centre in Nottingham. He had only been in post for some two days, as I understand it, as a Registrar when the disaster occurred which led to the death of a young patient. The patient in question was in remission from lymphoblastic leukaemia, and on 4th January 2001 he needed administration of the drugs which were essential to enable him to remain alive and to be in a position to fight the leukaemia. The drugs in question were called Cytosine and Vencristine. One of those should have been administered intrathecally, the other intravenously. Unfortunately both were administered on the same occasion and the one which should have been administered intravenously, Vencristine, was administered intrathecally, that is to say by injecting it into the spine. The result was fatal, and it was something which should not have happened.[4]There is no question but that there was a failure by the hospital to maintain at the relevant time an entirely satisfactory system, whereby it should have been well nigh impossible for the mistake to have been made. Nonetheless, there is no question but that Dr Mulhem should have checked and should have ensured that the drug was not administered in the wrong fashion.[5]He was in due course charged with manslaughter in relation to what had happened and he pleaded guilty to that charge. He was represented by very experienced Queen's Counsel. That plea of guilty recognised that he accepted that he had been guilty of gross negligence in what he had done. That was bad enough, but it was not the only matter to which he pleaded guilty. He also had assaulted his nine year old daughter and a second daughter, and in addition had assaulted his wife.[6]The first offence against his wife occurred in November 2000 which was before the incident involving the death of the patient. He struck his wife, causing her to fall to the floor and kicked her in the back. He did call an ambulance and accompanied her to hospital, but he lied about the cause of the injuries which she had suffered, telling the hospital that she was suffering from chest pains. Subsequently, in December 2001, he again assaulted her and shut her out of the house.[7]In addition to that, he had committed a serious assault on his nine year old daughter. That occurred on 13th December 2001 when he threw her to the floor because he thought that she was being too noisy in her play, and she suffered a fractured elbow. Again, he took her to hospital but lied about the cause of her injury, alleging that she had fallen down the stairs. The same daughter was assaulted on another occasion when he hit her finger with his belt because she walked in front of television whilst he was watching it. The finger was bruised and swollen.[8]Finally he assaulted his five year old daughter, again some time in the autumn of 2001, because she had walked in front of the television whilst he was watching it. He apparently threw a pencil at her which struck her on her forehead causing it to bleed.[9]Thus, he had pleaded guilty not only, as I have said, to the serious matter of manslaughter which concerned his professional activities, but also to some very unpleasant, and in one case very serious, assaults upon his wife and children. Furthermore, it could not be said that the stress resulting from the knowledge that he was liable to be prosecuted for, and indeed was being prosecuted for, the manslaughter had caused the first assault upon his wife.[10]The judge who sentenced him, Poole J, imposed prison sentences amounting in total to 18 months. He imposed, as one would expect, sentences for the assaults which were consecutive to that imposed for the manslaughter. In sentencing, the learned judge stated that the offences -- that is to say the assaults on his family -- were borne of the stress which he was then undergoing, but he went on to say that they were:
"... despicable acts against those who were within your power and at your mercy within your own home."
[11]That was, in respect of the first assault on his wife, as I have already indicated, an error because that occurred before the manslaughter in January 2001.[12]When the matter came before the General Medical Council, Dr Mulhem did not appear. Efforts were made to trace him; apart from anything else he was in breach of his obligation to maintain a registered address as a medical practitioner in this country through which he could be contacted. Attempts were made to serve him an order to notify him of the proceedings before the GMC but those attempts failed. It is believed that he has gone back to Syria and joined his family there. Attempts were made through the General Medical Council's contacts with the relevant bodies in Syria to see whether he could be located in that way, but no response which helped them to find Dr Mulhem was received.[13]So it was that he did not appear before the Professional Conduct Committee of the GMC. The Committee was satisfied, and properly satisfied, that in the circumstances they could continue to consider what sanctions should be imposed upon him, there of course being no dispute -- there could be no dispute -- about the fact that he had been convicted of the various offences in question.[14]The matter was opened to the Committee by counsel, and in giving their reasons for suspending, having gone through the circumstances, the Committee said this:
"The Committee have carefully considered His Honour Judge Poole's [sic] sentencing remarks and his review of the mitigation in Dr Mulhem's case. The Committee recognise that at the material time there were defective procedures within the hospital. It was acknowledged that the two drugs should not have been delivered together or on the same day. Clearer instructions should have been given to Dr Mulhem with regard to what he was permitted to undertake during his period of induction as specialist registrar. Furthermore, the Committee acknowledge that Dr Mulhem immediately took action as soon as he realised the grave error that had been made. Further, Judge Poole noted that Dr Mulhem was apparently suffering from stress after the events of 4th January 2001. "
However, despite the mitigating factors, the Committee have found that Dr Mulhem's conviction for manslaughter has undermined the trust that members of the public place in the profession and has brought discredit upon it. Furthermore, the conviction of a registered medical practitioner for offences of violence is a matter of grave concern. This behaviour is inexcusable and unbecoming of a registered medical practitioner."[15]In referring to the defective procedures in the way that the Committee did, it seems that they have perhaps not attached sufficient weight to the fact that a conviction for manslaughter on a plea of guilty can only have been on the basis that Dr Mulhem was himself guilty of gross negligence. There is no question that, however defective the procedures at the hospital may have been, he was seriously at fault. He was guilty, as I say, of gross negligence in administering the injection intrathecally instead of intravenously. Furthermore, it appears that the Committee have rather glossed over the serious nature of the offences of violence against his wife and family, coupled as they were with the telling of lies about the causes of those injuries.[16]Furthermore, when the matter appeared before Poole J, he specifically indicated that he took into account as a matter of mitigation of penalty that he was to impose the fact that Dr Mulhem would lose his profession. No doubt defence counsel believed, and understandably believed, that the inevitable result of the convictions which resulted from the pleas of guilty was that he would be erased from the Register and the judge clearly took the same view. Of course, the PCC was not bound by those observations, but they are powerful indications, and it should have been appreciated that they were indeed powerful indications, from an experienced judge and an experienced defence counsel of the perception that the public was bound to have of these matters.[17]In deciding to impose a suspension, the Committee said this:
"The Committee next considered whether Dr Mulhem's registration should be suspended. In doing this the Committee have reminded themselves of the evidence that has been placed before them. Whilst they recognise that Dr Mulhem made a single, disastrous error in his medical practice, they have set this against the background of Dr Mulhem being placed in a post without clear instructions about what he was and was not entitled to do during his induction period and where procedures were not followed by others. "
As the Committee have outlined, the matters in relation to violence are of grave concern to them. Accordingly, in all the circumstances of this case, the Committee have determined to suspend Dr Mulhem's registration for a period of 12 months."[18]The interesting thing is that the Committee approached this on the basis of considering the least penalty and then going upwards. They decided that a reprimand or no action would be inadequate, and, secondly, that there was no question of sensible conditions being imposed. They then went on to decide that there should be a suspension. Of course, they were aware of the possibility of erasure and it is to be noted that the GMC's own internal indicative sanctions guidance states in relation to erasure, as far as material:
"This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves any of the following (this list is not exhaustive): "
Serious departure from the relevant professional standards as set out in Good Medical Practice. "Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients. " ... "Dishonesty (especially where persistent and covered up)."[19]Suspension is considered appropriate where misconduct was serious:
"... but not so serious as to justify erasure (for example where there may have been acknowledgment of fault and where the Committee is satisfied that the behaviour or incident is unlikely to be repeated)."
[20]It seems to me that, where a doctor is convicted of manslaughter, that in itself should be sufficient for the Committee to think in terms of erasure. I am far from saying that a manslaughter conviction must automatically lead to erasure, but as it seems to me, it is clear that the public would be concerned, and rightly concerned, at the thought that a doctor who was convicted of the serious offence of manslaughter should be permitted to continue in practice as a doctor. But this case did not stop at manslaughter. There were the other serious offences against his family.[21]Accordingly, as it seems to me, it was perverse, and I use that word advisedly, of this Committee to act as they did. The doctor did not appear before them. There was nothing, therefore, before them to suggest that he was concerned to take specific action to ensure that he would be safe as a medical practitioner. Indeed, all the pointers were the other way. As is well known, the medical profession is a stressful profession and doctors are faced with circumstances which undoubtedly create stress, and that inevitably happens. Here was a doctor who, in stress, behaved in a violent fashion to his wife and family. Furthermore, there was indication of that sort of behaviour before the manslaughter. Accordingly, there was every indication that this particular doctor was a risk to the public, and there was nothing before the Committee which could have in any way persuaded them that that risk was one which was not likely to persist after the period of suspension, even though it might be possible to extend any period of suspension.[22]The reality is that the only possible, sensible decision that this Committee could have reached was to erase Dr Mulhem from the Register. As I have indicated, the GMC accept that that indeed was the case and they have not sought to uphold this particular determination. In those circumstances I have no hesitation in allowing this appeal and directing that in lieu of the suspension, a penalty of erasure from the Register should be imposed.